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Whitmer, Legislature headed for major split over Michigan's state of emergency

LANSING — Gov. Gretchen Whitmer and the Republican-controlled Legislature appear headed toward a major split over the state's handling of the coronavirus pandemic.

Barring a major change Thursday, Michigan could wake up Friday in a state where the governor says an emergency exists and lawmakers say it no longer does.

Legislative approval of Michigan's state of emergency — which gives Whitmer the powers she has used to take a range of ongoing actions, from imposing a stay-at-home order to closing bars and suspending evictions — runs out at the end of the day Thursday.

Democratic Gov. Gretchen Whitmer and the Republican-controlled Legislature appear headed for a major split over her emergency powers during the coronavirus pandemic.(Photo: Carlos Osorio, Associated Press)

But Whitmer, a Democrat who appears to have the law on her side, says she does not need a green light from lawmakers to continue the state of emergency and dozens of emergency executive orders.

Whitmer says her actions are all about saving lives, and the slowing growth in the number of COVID-19 cases shows her orders — and the actions Michiganders have taken in following them — are working. Michigan can gradually restart, based on data and safety protocols, but the worst thing for the economy would be a second spike, she said.

Republicans say the stay-at-home order, even with some recent loosening, is killing the economy. They say it is possible to protect public health, return to work safely, and maintain full constitutional rights, all at the same time. And they say parts of the state that have seen relatively few cases of the coronavirus should not be under the same restrictions as hard-hit Detroit.

The state of negotiations reached such a low point Wednesday that Whitmer's office released email exchanges with the office of Senate Majority Leader Mike Shirkey, R-Clarklake, in which Shirkey offered two one-week extensions of the state of emergency in return for Whitmer agreeing to negotiate the terms of any future stay-at-home order with the Legislature.

Whitmer rejected the offer, saying she would not "abrogate (her) duty to act in an emergency to protect the lives of Michiganders."

Talks are expected to continue Thursday, but prospects for an agreement look bleak.

"They're acting as though we're in the middle of a political problem," Whitmer said at a Wednesday news conference. "This is not a political problem that we have. This is a global health crisis," and "I'm not going to engage in political negotiations with anybody" when lives are at risk.

House Speaker Lee Chatfield, will return Thursday "to try and negotiate for common-sense changes to Michigan's one-size-fits-all approach to this pandemic" because "the people who have been hurt by these constantly changing orders deserve better," said spokesman Gideon D'Assandro.

But, during a radio interview Tuesday, Chatfield left no doubt where he thinks things stand if the Legislature does not act.

"Should we decide not to extend the state of emergency this week, the governor's state of emergency powers will therefore cease to exist and every executive order that was issued during the state of emergency is gone," Chatfield said on the "Dave Akerly Show" on WILS-AM (1320).

Michigan has two laws setting out emergency powers for governors. One requires a legislative extension after 28 days, but the other does not.

Bruce Timmons, a Republican attorney and longtime House judiciary staffer who served leaders from both parties until his retirement in 2013, said the law is on Whitmer's side and it would appear — barring a successful court challenge — that Michigan remains in a state of emergency until the governor says it no longer is.

The current stay-at-home order runs through May 15, though Whitmer announced Wednesday that it will be relaxed by allowing commercial and residential construction to resume May 7 and it could be eased further before the 15th.

House Minority Leader Christine Greig, D-Farmington Hills, accused Republican leaders of "playing games that jeopardize public safety with hollow legislative sessions and partisan power grabs."

Greig said GOP leaders should "put their personal and political agendas aside, recognize the reality that we are in the midst of an unprecedented emergency, and get to work doing the people’s business, not the bidding of special interests."

But Sen. Tom Barrett, R-Charlotte, speaking Tuesday on WILS-AM, said that if Whitmer is following state law, the law she is following must be unconstitutional.

"That's not how laws get made in our state," Barrett said. "For the governor to claim that she can unilaterally ... seize all control of state government with no input from the Legislature should be very, very concerning.

"She's basically relegated us to doing an advisory status to her that she can just quickly disregard because she says she doesn't need us."

Republicans have called for a regional approach to the stay-home order, saying restrictions should be looser in parts of the state that are less hard-hit.

State Rep. Beau LaFave, a Republican from Iron Mountain in the Upper Peninsula, has called on Whitmer to restore non-emergency medical procedures for people, pets and livestock in his district, saying: “The U.P. has an extremely low number of COVID-19 cases," and "our hospitals should be trusted to make the best decisions for their patients."

Whitmer has pushed back, saying the same rural districts with few relatively few COVID-19 cases also have hospital systems least well-equipped to handle a surge.

But the governor did move to a regional approach in the plan she rolled out this week to restart Michigan's economy. It divides Michigan into eight regions, based on workplace commutes, hospital facilities and case numbers, among other factors.

Chatfield called the regional appoach a step in the right direction, but said the approach is still too slow. Also, Republicans complained about the way Whitmer's regional maps were drawn, saying, for example, that Lapeer County, in Michigan's Thumb area, should not be lumped in with Detroit and southeast Michigan.

The views of business leaders are split.

“The continued pragmatic and safe measures to get Michigan back to work that Gov. Whitmer is taking, such as opening up the construction sector on May 7, aligns with the chamber’s point of view for reactivating the economy in phases,” said Sandy Baruah, president and CEO of the Detroit Regional Chamber.

“A recent chamber poll showed the majority of workers, 61%, felt safe returning to work, and 60% reported they trusted their employer to keep them safe. The governor’s focus on public health, infused with thoughtful input from business, will yield better health and economic outcomes.”

But Rich Studley, president and CEO of the Michigan Chamber of Commerce, the state's most powerful business lobby, said he was appalled by Whitmer's Wednesday news conference, at which he said Whitmer took swipes at Republican leaders and was joined by AFL-CIO President Ron Bieber, who Studley felt gave a partisan and anti-business speech.

The construction industry never should have been shut down in the first place and was allowed to continue in several other states in the Midwest, he said.

Studley said Whitmer's actions have put more than 1 million Michigan residents out of work and she has not been able to fix ongoing issues at the Unemployment Insurance Agency that have kept hundreds of thousands of them from getting help.

"What we have been experiencing is a temporary public health emergency that in large part was made dramatically worse by the actions of the governor herself," Studley said.